UNITED STATES of America, Plaintiff-Appellee, v. William HATCH, Defendant-Appellant. Thirteenth Amendment Scholars, Amicus Curiae.
No. 12-2040.
United States Court of Appeals, Tenth Circuit.
July 3, 2013.
722 F.3d 1193
Thomas E. Chandler, Attorney, Civil Rights Division (Thomas E. Perez, Assistant Attorney General, and Jessica Dunsay Silver, Attorney, Civil Rights Division, with him on the brief) Department of Justice, Appellate Section, Washington, DC, for Appellee.
Before MURPHY, O‘BRIEN, and TYMKOVICH, Circuit Judges.
TYMKOVICH, Circuit Judge.
Three New Mexico men kidnaped a disabled Navajo man and branded a swastika into his arm. The United States charged the assailants with committing a hate crime under the recently enacted Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act, Pub.L. No. 111-84, Div. E, 123 Stat. 2835 (2009), codified in relevant part at
The three assailants contended in district court that the Hate Crimes Act is unconstitutional, claiming Congress lacks the authority to criminalize purely intrastate conduct of this character. The government countered that the
One of those men, William Hatch, then pleaded guilty while reserving his right to appeal. He now renews his challenge to the constitutionality of the Act. Like the district court, we conclude that Congress has power under the
We therefore affirm.
I. Background
Hatch and two of his friends, Paul Beebe and Jesse Sanford, worked together at a restaurant in Farmington, New Mexico. All three are white.
In April 2010, a mentally disabled Navajo man—whom the record identifies only as “V.K.“—came to the restaurant. Beebe convinced V.K. to come to Beebe‘s apartment. Hatch and Sanford later joined Beebe there.
At Beebe‘s apartment, the three white men drew on V.K.‘s back with markers. They told him they would draw “feathers” and “native pride” but actually drew satanic and anti-homosexual images. They then shaved a swastika-shaped patch into V.K.‘s hair. Finally, they heated a wire hanger
Based on these actions, the State of New Mexico charged Beebe, Sanford, and Hatch under state law with kidnaping, aggravated battery, and conspiracy to commit both of these crimes.
Six months later—while the state prosecution was still pending—the federal government charged Beebe, Sanford, and Hatch with violating (and conspiracy to violate)
In May 2011, Hatch was convicted in New Mexico state court of conspiracy to commit aggravated battery, but otherwise acquitted. That same month, Beebe, Sanford, and Hatch filed a motion in federal court to dismiss the federal indictment, claiming that
In September 2011, the State of New Mexico sentenced Hatch to eighteen months’ imprisonment. In February 2012, the district court sentenced Hatch to the lesser of fourteen months’ imprisonment or time served, running concurrently with his state sentence.
II. Analysis
The sole question before us is whether the portion of the Hate Crimes Act under which Hatch was convicted,
A. The Thirteenth Amendment Enforcement Power
Although this case centers on the
1. The Reconstruction Amendments
The
Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
Section 2. Congress shall have power to enforce this article by appropriate legislation.
Congress approved the
Two other amendments soon followed, forming a trilogy referred to as the Reconstruction Amendments. The
The states adopted the third of the Reconstruction Amendments, the
2. The “Badges and Incidents” of Slavery
At issue here is the first of the Reconstruction Amendments, the
In 1875, Congress acted under both the
In 1883, five cases arising under this act came to the Supreme Court in an appeal consolidated as the Civil Rights Cases, 109 U.S. 3, 3 S.Ct. 18, 27 L.Ed. 835 (1883). All five involved private citizens or entities denying African Americans access to public accommodations on equal terms with other races.
“Has Congress constitutional power to make such a law?” the Supreme Court inquired. Id. at 10, 3 S.Ct. 18. The Court could find no such power under the
has a reflex character also, establishing and decreeing universal civil and political freedom throughout the United States; and it is assumed that the power vested in Congress to enforce the article by appropriate legislation, clothes Congress with power to pass all laws necessary and proper for abolishing all badges and incidents of slavery in the United States....
Id. (emphasis added).
But “[c]an the act of a mere individual, the owner of the inn, the public conveyance, or place of amusement, refusing the
There were thousands of free colored people in this country before the abolition of slavery, enjoying all the essential rights of life, liberty, and property the same as white citizens; yet no one, at that time, thought that it was any invasion of their personal status as freemen because they were not admitted to all the privileges enjoyed by white citizens, or because they were subjected to discriminations in the enjoyment of accommodations in inns, public conveyances, and places of amusement. Mere discriminations on account of race or color were not regarded as badges of slavery.
Id. at 25, 3 S.Ct. 18 (emphasis in original). With this reasoning, the Court struck down the Civil Rights Act as unconstitutional.
Historically speaking, it bears noting that the contemporaneous meaning of “incidents of slavery,” both before and soon after the adoption of the
“Badges of slavery,” by contrast, had a somewhat looser meaning. See id. at 575-82. In the antebellum years, it could refer literally to a badge worn by slaves, such as copper badges issued to certain slaves in Charleston, South Carolina. See generally Harlan Greene et al., Slave Badges and the Slave-Hire System in Charleston, South Carolina 1783–1865 (2008); Rutherglen, Badges and Incidents, at 166 (noting that “badge,” in antebellum legal discourse, was sometimes used as shorthand for “evidence permitting an inference from external appearances to legal status“). In addition, “badges of slavery” could refer to the psychological scars that slavery inflicted upon slaves, McAward, Defining the Badges, at 577, or to any “evidence of political subjugation,” Rutherglen, Badges and Incidents, at 166.
In postbellum legal discourse, “badges of slavery” came to be used primarily as a synonym for slavery‘s continuing “incidents,” as perpetuated by the Black Codes. McAward, Defining the Badges, at 581; Rutherglen, Badges and Incidents, at 165. But “badges of slavery” also arguably extended to “widespread [private] violence and discrimination, disparate enforcement of racially neutral laws, and eventually, Jim Crow laws.” McAward, Defining the Badges, at 581.
Whatever “badges of slavery” and “incidents of slavery” meant in isolation, the compound phrase, “badges and incidents of slavery,” first arose in the Civil Rights Cases and “quickly became the Supreme Court‘s standard gloss upon the powers of Congress under the
The Civil Rights Cases obviously interpreted this characterization narrowly. Following this narrow reading of what constitutes the badges and incidents of slavery, the Supreme Court later held that Congress‘s badges-and-incidents authority did not permit it to criminalize threats of violence used to deter black persons from obtaining gainful employment. Hodges v. United States, 203 U.S. 1, 27 S.Ct. 6, 51 L.Ed. 65 (1906). Even if “one of the disabilities of slavery, one of the indicia of its existence, was a lack of power to make or perform [employment] contracts,” id. at 17, 27 S.Ct. 6 (emphasis in original), the Court believed that permitting Congress to criminalize threats of violence used to deter blacks from obtaining employment would permit Congress to legislate against nearly every wrong committed by one person against another, see id. at 18-19, 27 S.Ct. 6. This was so, said the Court, because the
In other words, the Court in Hodges reasoned that if badges-and-incidents extends to the type of conduct at issue there and if Congress‘s badges-and-incidents authority applies to all races, then Congress could legislate against “every act done to an individual which was wrong if done to a free man, and yet justified in a condition of slavery.” Id. at 19, 27 S.Ct. 6. The Court gave no weight to the element that distinguished a civil rights offense from an ordinary offense, namely, that the defendant acted because of the victim‘s race. See id. at 18, 27 S.Ct. 6 (quoting government‘s concession that the statute‘s constitutionality hung on “the additional element ... of an injury [inflicted] solely on account of [the victim‘s] color“); cf. id. at 26, 29-30, 34-37, 27 S.Ct. 6 (Harlan, J., dissenting) (repeatedly pointing out the requirement that the defendant act “because of” the victim‘s race).
Sixty years after Hodges, however, the Court adopted a more generous approach to Congress‘s
The Supreme Court disagreed. It concluded that Congress had enacted
As to the question of whether
“Surely Senator Trumbull was right,” the Court concluded. “Surely Congress has the power under the
In sum, after these cases the
B. The Hate Crimes Act
Relying in part on the badges-and-incidents authority described in Jones, Congress enacted the Hate Crimes Act in 2009, adding a new
The first offense prohibits physical violence (or threats of it in certain circumstances) on account of the victim‘s race, color, religion, or national origin:
(1) Offenses involving actual or perceived race, color, religion, or national origin.—Whoever, whether or not acting under color of law, willfully causes bodily injury to any person or, through the use of fire, a firearm, a dangerous weapon, or an explosive or incendiary device, attempts to cause bodily injury to any person, because of the actual or perceived race, color, religion, or national origin of any person—
(A) shall be imprisoned not more than 10 years, fined in accordance with this title, or both....
Congress explicitly justified the racial violence provision under its
For generations, the institutions of slavery and involuntary servitude were defined by the race, color, and ancestry of those held in bondage. Slavery and involuntary servitude were enforced, both prior to and after the adoption of the 13th amendment to the Constitution of the United States, through widespread public and private violence directed at persons because of their race, color, or ancestry, or perceived race, color, or ancestry. Accordingly, eliminating racially motivated violence is an important means of eliminating, to the extent possible, the badges, incidents, and relics of slavery and involuntary servitude.
The second offense defined in
(2) Offenses involving actual or perceived religion, national origin, gender, sexual orientation, gender identity, or disability.—
(A) In general.—Whoever, whether or not acting under color of law, in any circumstance described in subparagraph (B) [regarding interstate commerce] or paragraph (3) [regarding federal territories], willfully causes bodily injury to any person or, through the use of fire, a firearm, a dangerous weapon, or an explosive or incendiary device, attempts to cause bodily injury to any person, because of the actual or perceived religion, national origin, gender, sexual orientation, gender identity, or disability of any person—
(i) shall be imprisoned not more than 10 years, fined in accordance with this title, or both....
That provision is not before us in this appeal.
C. Constitutionality of 18 U.S.C. § 249(a)(1)
The racial violence provision‘s constitutionality turns on the scope of Congress‘s authority to prohibit racial violence as a badge or incident of slavery. In this regard, as we explained above, the Supreme Court‘s Jones decision establishes a “rational determination” test. As the Court there stated, “Surely Congress has the power under the
Hatch argues, however, that Congress‘s badges-and-incidents authority has grown substantially narrower in the past few decades. Hatch specifically relies on a synthesis of federalism concepts derived from the
While Hatch‘s arguments raise important federalism questions, in light of Jones it will be up to the Supreme Court to choose whether to extend its more recent federalism cases to the
1. Federalism Concerns
Hatch‘s federalism arguments begin with the
But because the three Reconstruction Amendments “disclose[] a unity of purpose,” Slaughter-House Cases, 83 U.S. 36, 67, 16 Wall. 36, 21 L.Ed. 394 (1872), Hatch proposes that a
Congress responded to Smith by enacting RFRA, which re-imposed a stricter standard on the states—in effect, returning to the pre-Smith understanding of the
The Court further insisted on “a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end.” Id. at 520, 117 S.Ct. 2157. The Court found an example of congruence and proportionality in South Carolina v. Katzenbach, 383 U.S. 301, 86 S.Ct. 803, 15 L.Ed.2d 769 (1966), which addressed the constitutionality of the Voting Rights Act of 1965 under
RFRA, by contrast, applied nationwide and placed “substantial costs” on the states, “both in practical terms of imposing a heavy litigation burden on the States and in terms of curtailing their traditional general regulatory power.” Id. at 534, 117 S.Ct. 2157. “Laws valid under Smith would fall under RFRA without regard to whether they had the object of stifling or punishing free exercise.” Id. RFRA therefore exceeded Congress‘s
City of Boerne nowhere mentions the
Similar concerns underlay two Commerce Clause cases on which Hatch also relies, United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), and United States v. Morrison, 529 U.S. 598, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000). In Lopez, the Supreme Court addressed Congress‘s power under the Commerce Clause to enact the Gun-Free School Zones Act. The act “neither regulate[d] a commercial activity nor contain[ed] a requirement that the possession [of a gun in school zone] be connected in any way to interstate commerce.” Lopez, 514 U.S. at 551, 115 S.Ct. 1624. The Court therefore struck it down as an impermissible attempt to exercise “general federal police power.” Id. at 564, 115 S.Ct. 1624.
In Morrison, the Supreme Court struck down a portion of the Violence Against Women Act (VAWA) for similar reasons. VAWA provided a federal civil remedy to victims of “violence motivated by gender.” Morrison, 529 U.S. at 605, 120 S.Ct. 1740 (internal quotation marks omitted). This remedy, although civil in nature, “cover[ed] a wide swath of criminal conduct.” Id. at 606, 120 S.Ct. 1740. In enacting VAWA, Congress found that gender-motivated violence affected interstate commerce indirectly, but the Supreme Court “reject[ed] the argument that Congress may regulate noneconomic, violent criminal conduct based solely on that conduct‘s aggregate effect on interstate commerce. The Constitution requires a distinction between what is truly national and what is truly local.” Id. at 617-18, 120 S.Ct. 1740. “Indeed,” the Court continued, “we can think of no better example of the police power, which the Founders denied the National Government and reposed in the States, than the suppression of violent crime and vindication of its victims.” Id. at 618, 120 S.Ct. 1740. The Court accordingly concluded that VAWA‘s civil remedy exceeded Congress‘s powers under the Commerce Clause.2
Hatch believes that the Jones approach to the
At its core, Hatch‘s argument raises important concerns we share. “Badges and incidents of slavery,” taken at face value, puts emphasis solely on the conduct Congress seeks to prohibit, and it seems to place few limits on what that conduct might be. Given slaves’ intensely deplorable treatment and slavery‘s lasting effects, nearly every hurtful thing one human could do to another and nearly every disadvantaged state of being might be analogized to slavery—and thereby labeled a badge or incident of slavery under Jones‘s rational determination test. In effect, this interpretation gives Congress the power to define the meaning of the Constitution—a rare power indeed. See City of Boerne, 521 U.S. at 529, 117 S.Ct. 2157. And many legal scholars have encouraged broad use of
While this debate raises worthwhile questions, the Supreme Court has never revisited the rational determination test it established in Jones. And more importantly for our purposes, none of the federalism authorities Hatch cites mention Jones or the
“yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to [the Supreme] Court the prerogative of overruling its own decisions.” Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484, 109 S.Ct. 1917, 104 L.Ed.2d 526 (1989); see also Thomas More Law Ctr. v. Obama, 651 F.3d 529, 559 (6th Cir.2011) (Sutton, J., concurring) (“[T]he Supreme Court has considerable discretion in resolving [novel constitutional questions]. [That] does not free lower court judges from the duty to respect the language and direction of the Court‘s precedents....“).
Thus, we must leave it to the Supreme Court to bring
2. Internal Limitations Within 18 U.S.C. § 249(a)(1)
Further, even under Jones we see limiting principles to congressional authority, and the racial violence provision respects those limits.
Although “badges and incidents of slavery” could be interpreted as giving Congress authority to legislate regarding nearly every social ill (because nearly all can be analogized to slavery or servitude), the racial violence provision does not take such an approach. Rather, the racial violence provision focuses on three connected considerations: (1) the salient characteristic of the victim, (2) the state of mind of the person subjecting the victim to some prohibited conduct, and (3) the prohibited conduct itself. Each consideration receives attention in the racial violence provision and leads us to conclude that Congress met the Jones test in rationally determining racially motivated violence to be a badge or incident of slavery that it could prohibit under its
First, concerning the salient characteristic of the victim—“race, color, religion, or national origin“—Congress confined the racial violence provision‘s reach to aspects of race as understood in the 1860s when the
Congress made no similar findings for “color,” but there is no reasonable dispute that “color” has long been used as a synonym for “race,” particularly with respect to African Americans.
By contrast, Congress placed non-racial classifications—gender, sexual orientation, gender identity, and disability—in a separate paragraph and explicitly linked those classifications to the Commerce Clause or Congress‘s power over federal territories. See
The second aspect of badges-and-incidents on display in the racial violence provision is the state of mind of the person subjecting the victim to some prohibited conduct. This further confines the statute‘s reach. Congress did not seek to punish all violence against those who embody a trait that equates to “race.” Rather, Congress seeks to punish only those who act “because of the [victim‘s] actual or perceived race.”
The third aspect of badges-and-incidents—the prohibited conduct itself—requires little discussion in light of the foregoing. Congress could rationally conclude that physically attacking a person of a particular race because of animus toward or a desire to assert superiority over that race is a badge or incident of slavery. The antebellum North Carolina Supreme Court, for example, characterized unrestrained master-on-slave violence as one of slavery‘s most necessary features. State v. Mann, 13 N.C. (2 Dev.) 263, 1829 WL 252, at *2-3. “[U]ncontrolled authority over the body,” it said, is the only thing “which can operate to produce” a slave‘s necessary obedience. Id. at *2. “The power of the master must be absolute, to render the submission of the slave perfect.” Id.; see also United States v. Nelson, 277 F.3d 164, 189 (2d Cir.2002) (“slavery in general ... centrally involves the master‘s constant power to use private violence against the slave“); Neal v. Farmer, 9 Ga. 555, 1851 WL 1474, at *8 (stating that being “liable to beating ... and every species of chastisement” were “incidents of slavery“); George M. Stroud, A Sketch of the Laws Relating to Slavery 31, 38 (2d ed. 1856) (listing among the “incidents” of slavery, “[t]he master may, at his discretion, inflict any punishment on the person of his slave“); Rutherglen, State Action, at 1399 (“the principal feature of the law of slavery was the ‘master‘s justice’ over his slaves, who had virtually no legal protection from the master‘s decision to discipline and punish“). Just as master-on-slave violence was intended to enforce the social and racial superiority of the attacker and the relative powerlessness of the victim, Congress could conceive that modern racially motivated violence communicates to the victim that he or she must remain in a subservient position, unworthy of the decency afforded to other races.
In sum, Congress employed a limited approach to badges-and-incidents, applying that concept to: (a) actions that can rationally be considered to resemble an incident of slavery when (b) committed upon a victim who embodies a trait that equates to “race” as that term was understood in the 1860s, and (c) motivated by animus toward persons with that trait. While Congress‘s three-faceted approach is nowhere clearly spelled out in case law, and we therefore have no occasion to decide whether legislation enacted under
We therefore conclude that
Hatch also challenges the Hate Crimes Act‘s requirement that the Attorney General certify any prosecution under the Act:
(b) Certification requirement—
(1) In general.—No prosecution of any offense described in this subsection6 may be undertaken by the United States, except under the certification in writing of the Attorney General, or a designee, that—
(A) the State does not have jurisdiction;
(B) the State has requested that the Federal Government assume jurisdiction;
(C) the verdict or sentence obtained pursuant to State charges left demonstratively unvindicated the Federal interest in eradicating bias-motivated violence; or
(D) a prosecution by the United States is in the public interest and necessary to secure substantial justice.
Hatch contends the certification requirement represents Congress‘s attempt to insert City of Boerne-like congruence and proportionality into the Act. Hatch appears to be saying that, rather than the geographic congruence and proportionality the Supreme Court endorsed in City of Boerne, Congress attempted to create congruence and proportionality by limiting prosecutors’ discretion to bring hate crimes cases. And this case supposedly proves that such congruence and proportionality is a sham because the federal government indicted Hatch without awaiting the result of his state prosecution. In particular, Hatch argues that the certification prong under which he was indicted—“a prosecution by the United States is in the public interest and necessary to secure substantial justice“—imposes no real limits on federal power.
We see no constitutional significance in the certification requirement. Similar certification requirements have existed in
For example,
We have found no suggestion that these certification requirements were somehow constitutionally required—or constitutionally deficient given that “public interest” and “substantial justice” are expansive legal concepts. We therefore see no merit in Hatch‘s argument that the Hate Crimes Act‘s certification requirement somehow proves the need for congruence and proportionality, or the lack of it in this case.
E. Equal Protection
Finally, Hatch advances what he characterizes as an equal protection argument. He contends as follows: (1)
First, the Supreme Court has already stated that the
While the inciting cause of the [Thirteenth] Amendment was the emancipation of the colored race, yet it is not an attempt to commit that race to the care of the nation. It is the denunciation of a condition, and not a declaration in favor of a particular people. It reaches every race and every individual, and if in any respect it commits one race to the nation, it commits every race and every individual thereof. Slavery or involuntary servitude of the Chinese, of the Italian, of the Anglo-Saxon, are as much within its compass as slavery or involuntary servitude of the African.
203 U.S. at 16-17, 27 S.Ct. 6. Jones overruled Hodges to some extent, see Jones, 392 U.S. at 441 n. 78, 88 S.Ct. 2186, but not on this point. Eight years after Jones, the Supreme Court cited this passage from Hodges with approval as demonstrating that the Court had “previously ratified the view that Congress is authorized under the Enforcement Clause of the
In any event, Hatch‘s argument does not raise an equal protection problem. Although the idea of equality before the law is deeply ingrained in our jurisprudence, the legal guarantee of equal protection is not a supraconstitutional principle by which the Constitution itself is judged. If, as Hatch claims, the
Alternatively, one could argue that the later-enacted
III. Conclusion
The portion of the Hate Crimes Act under which Hatch was charged and convicted—
AFFIRMED.